On July 18 the U.S. Court of Appeals for the D.C. Circuit dismissed Texas EquuSearch’s challenge of the FAA’s directive that it stop flying search-and-rescue missions using unmanned aircraft systems (UAS)/drones.  In doing so, the Appellate panel, siding with the Justice Department/FAA, reasoned that the FAA’s email at issue was simply a warning and not subject to judicial review. The court said it lacked authority to review a claim in which “an agency merely expresses its view of what the law requires of a party.”

While attorneys for Texas EquuSearch said the court’s ruling “clarifies the organization is not under any FAA directive to not use this technology” and could complicate the FAA’s efforts to enforce its drone policy, the FAA said the decision was of no effect to the FAA’s ability to enforce its current no-fly restriction affecting commercial use of and “has no bearing on the FAA’s authority to regulate” unmanned aircraft.

While under the FAA Modernization and Reform Act of 2012 (the Act) the Department of Transportation is directed to accelerate the integration of commercial UAS into the national airspace system, the FAA currently prohibits the use of commercial UAS without its permission.  UAS advocates have criticized the FAA’s current no-fly policy as hampering an industry that’s ready to take off, and many users have quietly violated the policy by flying UAS for filmmaking, farming, construction and other uses.  In response, the FAA has sent some of these users, such as Texas EquuSearch, emails or letters, telling them they are violating FAA policy and ordering them to stop.

Though the court’s decision has emboldened Texas EquuSearch to immediately restart its UAS operations, it may merely have hastened the FAA’s use of more pointed enforcement options.

Other options remain available to commercial users, including through Certificates of Waiver or Authorization (COA) and petition for exemption under Section 333 of the Act, a number of which have recently been submitted by the film industry and are pending the FAA’s decision.